P. v. Cisneros CA2/3 ( 2013 )

Filed 3/6/13 P. v. Cisneros CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B244211
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA098761)
v.
RICKY HENRY CISNEROS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mike Camacho, Judge. Modified, and as modified, affirmed.
California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant and appellant Ricky Henry Cisneros appeals from the judgment entered
following his plea of no contest to unlawfully carrying a dirk or dagger (Pen. Code,
§ 21310)1 and his admissions that he previously had been convicted of attempted murder
(§§ 664, 187) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and had served two prior prison terms (§ 667.5, subd. (b)). The
trial court sentenced Cisneros to eight years in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.2
On July 23, 2012, Cisneros was riding his bicycle down the street. It appeared to
some police officers who were on patrol in the area that the bicycle did not have
functional brakes. The officers stopped Cisneros and asked him if he was on probation or
parole. Cisneros told the officers that he had been released from prison five days earlier
and was on parole. He admitted that he had no identification and that he had in his
possession a knife which he was carrying for protection. After the officers removed from
Cisneros’s pants pocket a knife and a capped syringe, they placed him under arrest and
took him into custody.
2. Procedural history.
On July 25, 2012, a felony complaint was filed charging Cisneros with unlawfully
carrying a dirk or dagger on his person (§ 21310) (count 1) and the misdemeanor of
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
As Cisneros waived his right to a preliminary hearing, the facts have been taken
from the probation report.
2
possession of an opium pipe (Health & Saf. Code, § 11364.1, subd. (a)(1)) (count 2). It
was further alleged that, in 1996, Cisneros had been convicted of the serious or violent
felonies of attempted murder (§§ 664, 187), attempted robbery (§§ 664, 211) and first
degree burglary (§ 459) within the meaning of the Three Strikes law (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)) and for purposes of section 1170, subdivision (h)(3). Finally,
it was alleged pursuant to section 667.5, subdivision (b) that Cisneros had served prison
terms for attempted murder (§§ 664, 187), the battery of a custodial officer while in the
performance of his or her duties (§ 243.1) and the unauthorized possession of drugs or
alcoholic beverages in prison (§ 4573.8).
At a hearing held on July 25, 2012, the trial court indicated that it was in
possession of “an advisement of rights, waiver, and plea form indicating that [Cisneros
was] interested in resolving his case at [that] very early stage [of the proceedings] by
entering a plea of guilty or no contest to count 1, . . . carrying a dirk or dagger.” The
court noted, however, that “[w]hat aggravate[d] his case [was] his criminal history which
[was] significant. [But] [t]he People [were evidently] willing to overlook what otherwise
could [have been] a life sentence and [instead to] strike at least two strikes to allow
[Cisneros] to take advantage of a second-strike case settlement [and] receive an eight-
year commitment [to] the state prison.”
Counsel for Cisneros then inquired of the trial court whether it would consider a
sentence of less than eight years. The court responded by addressing Cisneros and
stating, “Well, before I could even consider that, Mr. Cisneros, you would have to enter
an open plea, meaning that you would plead guilty to everything charged, admit the truth
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of all strikes and take your chances in terms of convincing me at a sentencing hearing that
you are worthy [of being] treated . . . as a second or even non-strike offender.” After
indicating that it would “look at a variety of things,” including the seriousness of the
present offense, the number and significance of Cisneros’s priors and his record while on
parole, the trial court indicated that it “very well could [impose] a life sentence.” On the
other hand, the court stated that “[w]hether or not [it] could do better than [eight years
was] uncertain.” The court continued, “If you want to gamble, it could be worse. It
could be better. But I cannot guarantee you exactly what I would do . . . [s]o you may
want to take advantage of the People’s offer.”
After conferring with his counsel, Cisneros decided to accept the disposition being
offered by the People. He completed and signed a form in which he indicated that, in
exchange for a term of eight years in prison, he was willing to waive his right to a
preliminary hearing, his right to a jury trial, his right to a court trial, his right to confront
and cross-examine the witnesses against him, his right to use the subpoena power of the
court to produce and present evidence favorable to him, his right to testify on his own
behalf and his right to remain silent. In addition, Cisneros “stipulate[d] and agree[d] that
there [was] a factual basis for [his]” plea and admissions. Cisneros then entered a plea of
no contest to “count 1, . . . a violation of . . . section 21310, . . . carrying a dirk or dagger,
a felony” and admitted the truth of one prior felony conviction, a 1996 attempted murder,
within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-
(i)). Cisneros also admitted, for purposes of section 667.5, subdivision (b), that in April
2005, he had been convicted of and served a prison term for battery against a custodial
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officer while he was in the performance of his duties (§ 243.1) and that in 1996 he was
convicted of and sentenced to prison for attempted murder (§§ 664, 187). Cisneros’s
counsel “join[ed] in the waivers, concur[red] in the plea and admissions [and] stipulate[d]
to a factual basis [for the plea] based upon [his] review of arrest reports.”
The trial court accepted the plea and admissions and found that they had been
freely and voluntarily made in that Cisneros had “expressly, knowingly, [and]
intelligently waived his constitutional rights.” The court found a factual basis for the plea
and admissions “based upon arrest reports,” and found Cisneros guilty “based upon his
plea to count 1.” The court also found true the allegations of prior felony convictions and
prison terms.
After Cisneros waived arraignment for judgment and sentencing, the trial court
deemed the complaint an information “for purposes of plea and sentence.” The court
imposed the high term of three years for Cisneros’s conviction of carrying a dirk or
dagger (§ 21310), then doubled the term to six years pursuant to the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). “In addition and consecutive,” the court
imposed “one additional year for each of two state prison priors admitted pursuant to
[section] 667.5, subdivision (b), for a total aggregate sentence of eight years.” After it
awarded Cisneros presentence custody credit for three days actually served and three
days of good time/work time, for a total of six days,3 the trial court dismissed the
remaining count and allegations.
3
The abstract of judgment indicates Cisneros was awarded presentence custody
credit for six days actually served and six days of good time/work time. The trial court is
5
The court imposed a $240 restitution fine (§ 1202.4, subd. (b)), a stayed $240
parole revocation restitution fine (§ 1202.45), a $40 court operations assessment
(§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment (Gov. Code, § 70373).
The court then “remanded” Cisneros and set a “post-sentence nonappearance” hearing for
August 8, 2012.
On August 6, 2012, the case was called for “further proceedings.” Cisneros,
however, failed to appear and the matter was continued to the following day, August 7.
On August 7, Cisneros was still not present, but was represented by counsel. Cisneros
had made a motion to withdraw his plea and the trial court denied it without prejudice,
indicating that it could be re-filed “within the statutory time.”
On August 21, 2012, Cisneros wrote to his trial counsel a letter in which he
indicated that he was “not satisfied with the 8 year plea agreement.” Cisneros asserted
that he was “completely incompetent” at the time he entered the plea as he was going
through “drug withdrawal[].” Cisneros believed that “a lot of options were ‘overlooked’
” and that counsel had been ineffective. He wished to appeal the judgment on those
grounds as well as on the basis that there had been an “illegal search and seizure” and
“wrongful sentencing.” Counsel forwarded the letter and two exhibits attached to it to
the superior court, which received it on August 31, 2012.
directed to correct the abstract to show that Cisneros served three days of actual time and
was awarded three days of good time/work time, for a total of six days, and to forward a
corrected copy to the Department of Corrections.
6
At a hearing held on September 21, 2012, the trial court indicated that it had read
and considered the requests made by Cisneros in his letter. The court denied Cisneros’s
“motion” based on its conclusion that “[a] review of the record clearly show[ed] that
[Cisneros] freely and voluntarily entered into a plea agreement with the prosecution.”
The court indicated that “[t]here [was] absolutely no evidence that [Cisneros] lacked the
exercise of free judgment.”
Cisneros filed a timely notice of appeal and request for a certificate of probable
cause on September 24, 2012. In his request for a certificate, he asserted that his counsel
had been ineffective and that he had been unlawfully sentenced. Cisneros urged that,
under those circumstances, he should be allowed to withdraw his plea. However, on the
same day that it was filed, the trial court denied Cisneros’s request for a certificate of
probable cause. Then, on October 2, 2012, this court issued an order stating that “[i]n
light of the fact that the certificate of probable cause was denied, the appeal filed on
September 24, 2012, is limited to non-certificate issues.”
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no
issues and requested this court to conduct an independent review of the record.
By notice filed November 30, 2012, the clerk of this court advised Cisneros to
submit within 30 days any contentions, grounds of appeal or arguments he wished this
court to consider. No response has been received to date.
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REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect an award of
presentence custody credit of three days actually served and three days of good
time/work time, for a total of six days. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
We concur:
KLEIN, P. J.
KITCHING, J.
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